Yeaples v. Precision Directional Boring, LLC

97 N.E.3d 1180, 2017 Ohio 7792
CourtCourt of Appeals of Ohio, Ninth District, Medina County
DecidedSeptember 25, 2017
DocketNo. 16CA0031–M
StatusPublished

This text of 97 N.E.3d 1180 (Yeaples v. Precision Directional Boring, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Ninth District, Medina County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yeaples v. Precision Directional Boring, LLC, 97 N.E.3d 1180, 2017 Ohio 7792 (Ohio Super. Ct. 2017).

Opinion

SCHAFER, Judge.

*1181{¶ 1} Defendant-Appellant, Gary Cole, attempts to appeal the judgment of the Medina County Court of Common Pleas denying his motion to dismiss. For the following reasons, this Court dismisses the appeal.

I.

{¶ 2} Plaintiffs-Appellees, Donald and Debra Yeaples, filed their initial complaint against Defendants Precision Directional Boring, LLC (Precision), Cole, and various John Does in the Cuyahoga County Court of Common Pleas. Precision moved to dismiss the complaint or to transfer for improper venue. The Cuyahoga County Court of Common Pleas granted the motion and transferred the case to the Medina County Court of Common Pleas. Upon the case being transferred to Medina County, the Yeapleses moved the court to refuse the transfer of venue. After a hearing, the Medina County Court of Common Pleas ordered the case transferred back to the Cuyahoga County Court of Common Pleas, concluding that venue was proper in Cuyahoga County. Subsequently, Cole and Precision moved the Cuyahoga County Court of Common Pleas to refuse venue and reaffirm its prior order transferring the action to Medina. The Cuyahoga County Court of Common Pleas granted the motion and ordered the matter transferred back to Medina County.

{¶ 3} While the case remained pending in Medina County, the Yeapleses filed a complaint in the Ohio Eighth District Court of Appeals seeking a writ of mandamus and a writ of procedendo to compel the Cuyahoga County Court of Common Pleas to vacate that court's orders and adjudicate the underlying action on the merits. The Eighth District concluded that venue was proper in Cuyahoga County. State ex rel. Yeaples v. Gall , 8th Dist. Cuyahoga No. 99454, 2013-Ohio-2207, 2013 WL 2382824 ¶ 19. Precision and Cole subsequently appealed to the Ohio Supreme Court. See State ex rel. Yeaples v. Gall , 141 Ohio St.3d 234, 2014-Ohio-4724, 23 N.E.3d 1077. The Supreme Court ultimately concluded that venue was proper in Medina County and that the Yeapleses were not entitled to the extraordinary relief provided through the writs of mandamus and procedendo. Id. at ¶ 40.

{¶ 4} Accordingly, the Medina County Court of Common Pleas accepted the transfer of venue. Upon leave of court, the Yeapleses filed an amended complaint asserting claims for "workplace intentional tort," negligence, violation of Ohio's frequenter statute, and loss of consortium. Cole filed a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted. The trial court subsequently denied Cole's motion.

{¶ 5} Cole filed this timely appeal raising two assignments of error for our review. The Yeapleses subsequently filed a motion to dismiss the appeal for lack of a final appealable order. For the ease of analysis, we elect to consider the assignments of error together.

II.

Assignment of Error I

The trial court erred in denying Gary Cole's Civ.R. 12(B)(6) motion to dis *1182miss because Gary Cole is immune from suit pursuant to [ R.C. 4123.741 ] as a matter of law based on the facts Yeaples sets forth in his second amended complaint.

Assignment of Error II

The trial court erred in failing to determine that Ohio law does not recognize a deliberate indifference/substantial certainty tort by one employee against a co-employee.

{¶ 6} In his first assignment of error, Cole asserts that based upon the facts set forth in the Yeapleses' second amended complaint, he is immune from suit pursuant to R.C. 4123.741 and that the trial court erred when it denied his motion to dismiss on that basis. In his second assignment of error, Cole asserts that the trial court erred by failing to conclude that Ohio law does not recognize a common law deliberate indifference or substantial certainty intentional tort committed by one employee against another.

{¶ 7} As a threshold matter, we must determine if the trial court's orders are properly before this Court as we only have jurisdiction to hear an appeal from a final judgment. Ohio Constitution, Article IV, Section 3 (B)(2); R.C. 2501.02. "In the absence of a final, appealable order, this Court must dismiss the appeal for lack of subject matter jurisdiction." In re Estate of Thomas , 9th Dist. Summit No.27177, 2014-Ohio-3481, 2014 WL 3938657, ¶ 4. "This rule of finality prevents piecemeal litigation, avoids delay, and thereby promotes judicial economy." State v. Torco Termite Pest Control , 27 Ohio App.3d 233, 234, 500 N.E.2d 401 (10th Dist. 1985).

{¶ 8} Cole contends in his brief in opposition to the Yeapleses' motion to dismiss that the trial court's denial of his motion to dismiss is a final appealable order because he is immune from suit pursuant to R.C. 4123.741. That statute states:

No employee of any employer, as defined in division (B) of section 4123.01 of the Revised Code, shall be liable to respond in damages at common law or by statute for any injury or occupational disease, received or contracted by any other employee of such employer in the course of and arising out of the latter employee's employment, or for any death resulting from such injury or occupational disease, on the condition that such injury, occupational disease, or death is found to be compensable under sections 4123.01 to 4123.94, inclusive, of the Revised Code.

(Emphasis added.) Id . "Generally, an order denying a motion to dismiss is not a final order." Polikoff v. Adam , 67 Ohio St.3d 100, 103, 616 N.E.2d 213 (1993). Nonetheless, the General Assembly has set forth what orders are final and appealable in R.C. 2505.02(B). That statute states, in relevant part:

An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State ex rel. Yeaples v. Gall
2013 Ohio 2207 (Ohio Court of Appeals, 2013)
In re Estate of Thomas
2014 Ohio 3481 (Ohio Court of Appeals, 2014)
State ex rel. Yeaples v. Gall (Slip Opinion)
2014 Ohio 4724 (Ohio Supreme Court, 2014)
Bishop v. Dresser Industries, Inc.
730 N.E.2d 1079 (Ohio Court of Appeals, 1999)
State v. Torco Termite Pest Control
500 N.E.2d 401 (Ohio Court of Appeals, 1985)
Lexington Ins. Co. v. DunnWell, L.L.C.
2016 Ohio 5311 (Ohio Court of Appeals, 2016)
Whitaker-Merrell Co. v. Carl M. Geupel Construction Co.
280 N.E.2d 922 (Ohio Supreme Court, 1972)
Celebrezze v. Netzley
554 N.E.2d 1292 (Ohio Supreme Court, 1990)
Polikoff v. Adam
616 N.E.2d 213 (Ohio Supreme Court, 1993)
Community First Bank & Trust v. Dafoe
844 N.E.2d 825 (Ohio Supreme Court, 2006)
Sinnott v. Aqua-Chem, Inc.
876 N.E.2d 1217 (Ohio Supreme Court, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
97 N.E.3d 1180, 2017 Ohio 7792, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yeaples-v-precision-directional-boring-llc-ohctapp9medina-2017.